9911796707
TMI Blog1999 (1) TMI 509X X X X Extracts X X X X X X X X Extracts X X X X ..... are relevant for the purpose of disposal of this writ petition are set out as under: The first respondent-M/s. I.T.C. Bhadrachalam Paper Boards Limited, Sarapaka, Khammam District is an assessee on the rolls of the fourth respondent for the assessment years 1982-83, 1983-84 and 1984-85. The assessee was assessed by the fourth respondent on the turnovers reported by the assessee under the Central Sales Tax Act, which are as under: The first respondent-company is located in Sarapaka area of Khammam district which is a scheduled area (agency area) as notified by the Government of Andhra Pradesh through G.O. Ms. No. 606, dated April 9, 1981. As per the said G.O., certain concessions are extended to the industrial units which are established in agency areas. According to the said G.O., 50 per cent of rate of reduction on the purchase of raw material by the industrial units located in the scheduled areas and total exemption from payment of sales tax on the sales of finished products manufactured by such industrial units for a period of five years from the date of commencement of commercial production, was allowed to the industrial units located in the said area. The exemption was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) of the said Act can be exercised only within such period not exceeding four years and therefore, the order dated November 23, 1992 passed by the third respondent is clearly time-barred. Further, according to the petitioner, the powers under section 20(1) and (2) of the APGST Act can be exercised suo motu and not otherwise. Petitioner states that this suo motu powers can be exercised if the order is prejudicial to the interests of the revenue. However, in this case, the third respondent has not exercised the said powers suo motu but has exercised the same at the instance of the first respondent which is impermissible under the APGST Act. It is further complained that though the assessment orders passed by the fourth respondent are not prejudicial to the interests of the revenue, yet the third respondent exercised his suo motu revisional powers under section 20(1) and (2) of the APGST Act, at the instance of the first respondentassessee after a lapse of four years from the date of service of the order copies on the first respondent-assessee. 6.. Petitioner states that the second respondent-Commissioner of Commercial Taxes, Government of Andhra Pradesh though sought to revise t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Andhra Pradesh, represented by the Principal Secretary to Government, Revenue Department, Hyderabad has presented the instant writ petition under article 226 of the Constitution of India praying for issuance of a writ of certiorari calling for the records in Ref. No. L.V. (2)/416 of 1991 dated November 23, 1992 on the file of the third respondent and the proceedings in Ref. No. L. III(2)/L.V.(2)/416 of 1991 dated November 27, 1993 on the file of the second respondent and to quash the same and a further consequential direction to direct the first respondent to remit the amount of Rs. 3.70 crores which was refunded to it pursuant to the orders passed by the third and second respondents respectively. 10.. Opposing the writ petition, the first respondent has filed a detailed counter justifying the orders passed by the third and second respondents respectively. In the counter, it is stated by the first respondent that the order passed by the third respondent dated November 23, 1992 is within the time permissible under section 20(3) of the APGST Act. It is also averred that the second respondent is justified in dropping the review proceedings initiated by him against the orders passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e first respondent and not suo motu, which according to the learned Special Government Pleader is impermissible. He further contended that in terms of the provisions under section 20(2) of the Act, the powers can be exercised only suo motu when the orders are prejudicial to the interests of revenue and not otherwise. Learned Government Pleader, therefore, contended that the order dated November 23, 1992 passed by the third respondent as confirmed by the second respondent by his order dated November 27, 1993 be declared as illegal in view of the decision of the Supreme Court in the decision Commissioner of Sales Tax v. Pine Chemicals Ltd. [1995] 96 STC 355. 14.. In order to appreciate this contention, it is appropriate to extract the relevant provisions enumerated under section 20 of the APGST Act, 1957, which reads as under: 20.. Revision by Commissioner of Commercial Taxes and other prescribed authorities.-(1) The Commissioner of Commercial Taxes may suo motu call for and examine the record of any order passed or proceeding recorded by any authority, officer or person subordinate to it, under the provisions of this Act, including sub-section (2) of this section and if such ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal, the first respondent allowed the assessment orders passed by the fourth respondent for the assessment years 1982-83, 1983-84 and 1984-85 to become final. 17.. G.O. Ms. No. 606 Revenue (S) Department, dated April 9, 1981 is issued by the Government of Andhra Pradesh providing 50 per cent concession to the industrial units set up in scheduled areas (agency areas) of sales tax on the purchase of raw materials, machinery, equipment, etc., and complete exemption to the products of the industry from sales tax for a limited period of five years. Notification-III annexed to the said G.O. Ms. No. 606 dated April 9, 1981 reads thus: In exercise of the powers conferred by sub-section (1) of section 9 of the Andhra Pradesh General Sales Tax Act, 1957 (Andhra Pradesh Act No. VI of 1957), the Governor of Andhra Pradesh hereby exempts the sales of products of the industrial units set up on or after the 17th December, 1976 in the scheduled areas declared by the President of India as such under the Fifth Schedule to the Constitution of India from the tax payable under the said Act for a period of five years from the date of going into regular production by such industrial units. This no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .G. Lakshmaiah Setty Sons [1994] 94 STC 190; AIR 1994 SC 2377 has also considered the decision of the Andhra Pradesh High Court in Kalluri Bheemalingam, In re [1967] 19 STC 116 and categorically held that under section 20 of the APGST Act, 1957, an assessee cannot invoke the suo motu revisional powers of the Commissioner/Joint Commissioner as the suo motu powers are conferred on higher authorities to correct the errors of law or to correct improper or irregular procedure or illegality in the procedure to safeguard the interests of the Revenue. 20.. The Supreme Court in the decision in State of Andhra Pradesh v. T.G. Lakshmaiah Setty Sons [1994] 94 STC 190; AIR 1994 SC 2377 has held thus: Accordingly we hold that the aggrieved assessee has only to pursue the remedies provided in the Act and he has no right to make an application under section 20 of the Act seeking revision of the orders of assessments made under the Act by the original authorities. Thus, it is clear from the above pronouncement of the Supreme Court that an assessee is not entitled to invoke the suo motu powers of the revisional authorities under section 20 of the APGST Act. 21. In this case, admittedly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has also held the same view. In view of the law laid down by the Supreme Court, the exercise of revisional powers under section 20(2) of the APGST Act by the third respondent at the instance of the first respondent-assessee is illegal and not authorised by law and as such, the contention of the learned senior counsel appearing on behalf of the first respondent-assessee cannot be accepted. 25.. Now, we proceed to examine the question of maintainability of the instant writ petition at the instance of the State. 26.. Sri M. Ramaiah, learned Special Government Pleader for Taxes appearing on behalf of the petitioner vehemently contended that all the assessing officers, revisional authorities and appellate authorities under the APGST Act discharge quasi-judicial functions under sections 14, 15, 19 and 20 of the said Act which are different from administrative functions and as such, a writ of certiorari is always available to the State which is the litigant before the revisional and appellate authorities. To buttress his contentions, learned Special Government Pleader appearing on behalf of the writ petitioner has placed strong reliance on the following decisions reported in Suraj Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal by special leave under article 136 against the judgment of the High Court on its judicial side. It is in this background, the Supreme Court held that the appeal by the High Court on the administrative side against the judgment of High Court on judicial side is maintainable. 31.. In Tara Chand Kalloo Ram s case [1962] 13 STC 957 (All.) it is held thus: The functions which the Sales Tax Officers discharge in making assessments are judicial functions which must be faithfully and conscientiously discharged in respect of each assessee and not on any general instructions of their departmental officers or according to any set pattern or any pre-determined formula. From the decision in Tara Chand Kalloo Ram v. Sales Tax Officer [1962] 13 STC 957 (All.) and also in view of sections 14, 15, 19 and 20 of the APGST Act, it is manifestly clear that all the assessing officers, revisional authorities and appellate authorities discharge quasi-judicial functions which are different from administrative functions. When these authorities discharge quasi-judicial functions, there are two parties before them, viz., the assessee and the State. As against the order of revision passed under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red refund of a whopping amount of Rs. 3.70 crores to the first respondent-assessee. This order dated November 23, 1992 passed by the third respondent has been declared as erroneous, illegal and without authority by us in the foregoing paragraphs. As no provision for appeal is provided in the APGST Act against the order of the third respondent to the aggrieved party, i.e., State, we have also held that a writ of certiorari is available to the State against the order of the third respondent. When the first respondent-assessee has unjustly benefited and enriched itself by an amount of Rs. 3.70 crores as a result of an illegal and erroneous order of the third respondent, can this writ petition be thrown out on the ground of delay ? We are afraid, we cannot do so having regard to the facts and circumstances of the case more so when crores of public money is involved. We are fortified in our view by the decision of the Supreme Court in State of Uttar Pradesh v. Bahadur Singh AIR 1983 SC 845 wherein it is categorically held that a case wherein public interest and public monies are involved, cannot be thrown out merely on the ground of delay. Even otherwise also, we are convinced that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es and as such, the first respondent cannot illegally retain the public monies and unjustly enrich itself. 38.. On the contrary, Sri K. Srinivasa Murthy, learned senior counsel appearing on behalf of the first respondent contended that in view of the decision in Pine Chemicals Ltd. v. Assessing Authority [1992] 85 STC 432 (SC), the third respondent has rightly allowed the revision filed by the first respondent. He further contended that in view of the decision of the Supreme Court in Mafatlal Industries Ltd. v. Union of India [1998] 111 STC 467; 1996 (11) JT 283 the petitioner is not entitled for refund of the amount of Rs. 3.70 crores from the first respondent. 39.. It is an admitted fact that the first respondent had collected the tax from the purchasers of the goods towards Central sales tax. Therefore, the first respondent has passed on the tax liability to the customers, collected the same from them in the name of the State and paid the same to the Government for the years 1982-83, 1983-84 and 1984-85 pursuant to the final assessment orders passed by the fourth respondent. The first respondent accepted the said assessment orders and did not file any appeal. However, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... APGST Act. Therefore, the decision of the Supreme Court in Mafatlal Industries Ltd. v. Union of India [1998] 111 STC 467; 1996 (11) JT 283 cannot lend any assistance to the case of the first respondent. 42.. We have already held on issue Nos. 1 and 2 that the order dated November 23, 1992 passed by the third respondent under section 20(2) of the Act at the instance of the first respondent, ordering refund of a huge amount of Rs. 3.70 crores is illegal and without jurisdiction. The amount of Rs. 3.70 crores refunded to the first respondent pursuant to the illegal order dated November 23, 1992 is the public money which is to be spent for welfare activities. When such a huge amount is retained by the first respondent, the State is deprived of the said money which legitimately belongs to the State and therefore, the first respondent is not justified to retain the huge amount of Rs. 3.70 crores and such retention amounts to unjust enrichment of the first respondent. In this view of the matter, we answer this issue against the first respondent-assessee. 43.. It is lastly contended by Sri K. Srinivasa Murthy, learned senior counsel appearing on behalf of the first respondent-assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t respondent and has passed the order dated November 23, 1992 through which he ordered refund of an amount of Rs. 3.70 crores to the first respondent though the first respondent is not legally entitled to seek refund of the said amount. Though the second respondent initiated suo motu revision proceedings against the order passed by the third respondent dated November 23, 1992 by issuing show cause notice to the first respondent, but has dropped the said revision proceedings in the light of the decision of the Supreme Court in Pine Chemicals Ltd. v. Assessing Authority [1992] 85 STC 432 which held that the exemption of Central sales tax under section 8(2-A) of the Central Sales Tax Act, 1956 is available to such of those industries which are governed by specific G.Os. as is made applicable to the case of the industries in the State of Jammu and Kashmir. However, at the instance of the State of Jammu and Kashmir, the Supreme Court has reviewed its earlier decision in Pine Chemicals Ltd. v. Assessing Authority [1992] 85 STC 432 on October 24, 1994 by rendering another decision in Commissioner of Sales Tax another v. Pine Chemicals Ltd. [1995] 96 STC 355 holding that exemption under se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ram v. Sales Tax Officer [1962] 13 STC 957 (All.) and State of U.P. v. Bahadur Singh AIR 1983 SC 845, we set aside the orders dated November 23, 1992 and November 27, 1993 passed by the third and second respondents respectively. Consequently, we direct the first respondent to remit the amount of Rs. 3.70 crores to the writ petitioner forthwith. We are also of the view that though the first respondent is not legally entitled to seek refund of the said amount of Rs. 3.70 crores, but since it has enjoyed the said amount from the date of refund, the first respondent shall also pay interest to the writ petitioner on the said amount. Accordingly, we direct the first respondent to pay interest at 12 per cent per annum on the said amount of Rs. 3.70 crores from the date of refund till the date of remittance of the said amount to the writ petitioner. 46.. In the result, this writ petition is allowed with costs against the first respondent, quantified at Rs. 10,000 which shall be paid by the first respondent to the A.P. State Legal Aid Board within a period of four weeks from today. That rule nisi has been made absolute as above. Writ petition allowed. - - TaxTMI - TMITax - CST, VA ..... 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